Citation Nr: 1533357
Decision Date: 08/05/15 Archive Date: 08/11/15
DOCKET NO. 12-24 132 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for peripheral neuropathy of each lower extremity, to include as due to herbicide exposure and/or radiotherapy for service-connected prostate cancer.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The Veteran served on active duty from January 1964 to January 1968 and from February 1975 to February 1977.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter, as well as the issue of the Veteran's entitlement to service connection for erectile dysfunction, were most recently before the Board in January 2015, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) in order to undertake needed development. While the case remained in remand status, the AOJ granted service connection for erectile dysfunction by rating actions in April and July 2015, thereby removing that issue from the Board's appellate jurisdiction. Following the AOJ's attempts to complete the requested actions involving the issue of service connection for peripheral neuropathy of both lower extremities, the case was returned to the Board for further review.
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
By its January 2015 remand, the Board directed the AOJ, among other things, to readjudicate the issue on appeal on the basis of regulatory changes to 38 C.F.R. § 3.309, effective from September 6, 2013, in replacing the term "acute and subacute peripheral neuropathy" with "early onset peripheral neuropathy" and related modifications. See 78 Fed. Reg. 54,763 (2013). This was not accomplished on remand and further remand is required for corrective action. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).
In addition, the record indicates that this case was recertified to the Board for review in June 2015, and the Board by its correspondence of June 18, 1995, advised the Veteran that it had again received his case for review. Strangely, however, the record reflects that a supplemental statement of the case as to the issue on appeal was prepared on July 30, 2015, by the AOJ and provided to the Veteran. This is violative of 38 C.F.R. § 19.37 (2014) and warrants return of the case to the AOJ for corrective action. See also 38 C.F.R. § 19.31 (2014).
Information on file indicates that the AOJ on remand requested that the Veteran submit all pertinent records from Doctors Gilbert and Barta and he advised the
AOJ in April 2015 that all of the records in question were mailed by the private providers to the AOJ on March 28, 2015. Nevertheless, the record does not encompass any treatment records received by the AOJ in late March 2015 or in April 2015, or at any later point. As such, there is some question as to whether the record on appeal is fully complete and further efforts by the AOJ to obtain any additional records from each such medical provider are needed for compliance with the VA's duty to assist. See 38 U.S.C.A. § 5107A (West 2014); 38 C.F.R. § 3.159 (2014).
Accordingly, this case is REMANDED for the following actions:
1. Obtain for inclusion in the Veteran's electronic claims folder all private treatment records from Doctors Gilbert and Barta, which are not already on file, after obtaining appropriate written authorization from the Veteran.
2. Thereafter, readjudicate the issue on appeal on the basis of all pertinent evidence and dispositive law and regulations, including but not limited to the changes to 38 C.F.R. § 3.309, effectuated in September 2013, and all pertinent evidence inclusive of that considered by the AOJ in its decisional document of July 2015. If any benefit sought on appeal is not granted to the Veteran's satisfaction, then provide him with a supplemental statement of the case reflecting all pertinent evidence and governing law and regulations and afford him a reasonable period for a response, prior to returning the case to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).